By Bruce Buchanan, Sebelist Buchanan Law
Mary’s Gone Crackers Inc., a natural food company based in Gridley, California, has agreed to pay $1.5 million and to establish a corporate compliance program under a non-prosecution agreement reached with the U.S. Attorney’s Office following an investigation into potential criminal violations of federal immigration laws.

According to the agreement, in March 2012, Immigration and Customs Enforcement (ICE) audited Mary’s Gone Crackers’ I-9 forms for its employees. Thereafter, ICE provided a Notice of Suspect Documents (NSD) stating that 49 of Mary’s Gone Crackers’ employees appeared not to be authorized to work in the United States. After one employee provided corrected documentation, Mary’s Gone Crackers informed ICE that the other 48 had all resigned or been terminated.

However, within less than a month, Mary’s Gone Crackers rehired at least 13 employees that it claimed had been terminated or resigned, all of them under new names. One of those 13, an operations supervisor, never stopped working for Mary’s Gone Crackers at all, but instead continued to work under a new assumed name and received payment as an independent contractor, rather than through the company’s ordinary payroll. Several other Mary’s Gone Crackers employees knew that the operations supervisor was not eligible to work in the United States. When a search warrant was executed at the company’s Gridley facility in January 2013, at least 12 of the 13 rehired individuals were still working at Mary’s Gone Crackers.

During the course of the I-9 audit and its rehiring of individuals, Mary’s Gone Crackers had at times consulted with an outside counsel. After the search warrant, Mary’s Gone Crackers cooperated with the government’s investigation and took remedial measures, including terminating employees, stopping use of the outside counsel involved, and taking various steps to ensure compliance with immigration laws and I-9 regulations, including use of E-Verify and the Social Security Number Verification Service.
The company also established an anonymous tip line so that employees can report any potential I-9 issues. The non-prosecution agreement requires Mary’s Gone Crackers to establish a corporate compliance program covering its I-9 procedures and its use of the E‑Verify system, and requires timely and complete disclosure of violations of immigration laws or regulations within 24 hours of discovery. It also requires Mary’s Gone Crackers to provide corporate compliance reporting to the United States Attorney’s Office for two years. No federal criminal charges will be brought against Mary’s Gone Crackers for the investigated conduct if the company complies with the terms of the non-prosecution agreement.

The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) reached a settlement agreement with Powerstaffing Inc., a temporary staffing agency based in Edison, New Jersey, wherein the company agreed to pay $153,000 in civil penalties. Powerstaffing was alleged to have discriminated against work-authorized non-U.S. citizens in violation of the Immigration and Nationality Act (INA).

The OSC’s investigation found that from June 20, 2014, until December 15, 2015, Powerstaffing had a pattern or practice of requesting specific immigration documents from non-U.S. citizens for the I-9 forms. In contrast, Powerstaffing allowed U.S. citizens to present whichever valid documents they wanted to present to prove their work authorization. Under the INA, all workers, including non-U.S. citizens, must be allowed to choose whichever valid documentation they would like to present from the lists of acceptable documents to prove their work authorization, such as a driver’s license and an unrestricted social security card.

Powerstaffing promptly resolved this matter by its staff starting proper I-9 practices. Besides the civil penalties, the settlement agreement requires Powerstaffing to be subject to OSC monitoring and review of its hiring policies for two years, and every four months Powerstaffing will provide OSC with a list of hires of all lawful permanent residents and OSC will choose 125 from the list to analyze their I-9s and documentation.